Members of panel, left to right: Mark Hayward, Union Leader; David K. Taylor, Right to Know NH; Greg V. Sullivan, NEFAC; Lisa English, NH Asst. AG; Hon. William Delker, Superior Court Justice; Gilles Bissonette, NH ACLU. (Steve Bolton, Nashua Attorney, not shown.)
These are the remarks by David K. Taylor of Right to Know NH tonight at the Sunshine Week Panel discussion sponsored by the Nackey Loeb School and New England First Amendment Coalition.
Right to Know NH is a citizen’s group working to strengthen the Right to Know across our state. The biggest way we do that is through bills to change the Right-to-Know Law, RSA 91-A. Since we were formed in 2013, we have proposed a handful of bills each year.
Our first bill was a mess. Throughout 2013 we met monthly, going through all of RSA 91-A, word for word, proposing lots of changes. We combined the more than 20 changes into one bill, HB 1156. To our frustration, the House amended it, to throw out all our changes and replace them with a handful of changes to weaken the law. We had to work hard in the Senate to get it killed. Not a good start.
The lesson we learned that first year was to take smaller steps in a few separate bills. This strategy has been more successful.
Each year since 2014, Right to Know NH has proposed, at least in part, a few bills, and each year at least one of those bills have been signed into law. In 2015, 2 out of 3 became law. In 2016, it was 2 out of 4. In 2017, it was 4 out of 5. Last year, it was 1 out of 9. This year, we had a part in 4 bills, and all 4 are still alive.
Here are some of the new provisions in these bills that became law:
– votes to seal non-public minutes must be taken in public, (2015 HB108)
– non-public minutes have the same requirements as public minutes, (2016 HB1418)
– non-public minutes must record how each member voted on each action, (2016 HB1419)
– minutes must record who made and who seconded each motion. (2018 HB1347)
Another one of our bills that passed, encourages meeting notices and minutes to be posted consistently on the web. It only applies to those towns and agencies that already have a website and chose to use the web for this. So, we’d like it to be stronger, but it is a step forward. (2017 HB170)
One bill that passed encourages members of public bodies to help enforce the Right-to-Know Law during a meeting. This provision encourages members to object when they think the law is being violated. If they ask, this objection must be recorded in the minutes, so the public can easily see it. We actually hope that this objection would start a discussion by the public body at the meeting, leading them to fix the violation instead of continuing on. The incentive to object, is the member would not be subject to a personal fine under the law for the violation. (2017 HB460)
Another bill passed, to make it easier for citizens to enforce the Right-to-Know Law in court. A common mistake for citizens who go to court without a lawyer, is to assume that documents filed with a petition will be taken as evidence. Formally, they must ask the court to admit the evidence. This provision makes the court take these documents as evidence unless there is an objection. It effectively changes the evidence from opt in to opt out. This bill also requires a response to a petition to be filed a head of the court date. In my own case, for example, I was handed the answer as I walked into court, so I didn’t even have time to read it before the trial started. This provision makes sure that won’t happen again. (2017 HB252)
We’ve had some repeated failures, too, of course, for example: posting of agendas, notices posted more than 24 hours in advance, and, minimal records of non-meetings.
Two other bills that passed, are part of 2 long-term fights: the first deals with free inspection of records. 2015 HB138/HB606 The second seeks an alternative to going to court to enforce the Right-to-Know Law. (2017 HB178)
In 2015, we proposed a bill to make inspection of records free. (HB138) This is a fundamental goal for Right to Know NH. That year other bills sought to make electronic records free. (HB606) Our bill was combined with these others, and unfortunately, the language got muddled, and courts have since interpreted the language, differently than intended. The fight for free inspection of records continues this year. HB286 was voted to pass 20-0 out of committee and we are hoping that strong support will continue on the floor of the House and into the Senate. However, last year a similar bill, was killed in the Senate.
The big Right-to-Know bill this year is actually multiple bills, all trying to establish an ombudsman to enforce the Right-to-Know Law. This effort started back in 2014, when Harriet Cady of Right-to-Know NH proposed a grievance commission, as an alternative to going to court. This idea failed in 2014 and again in 2015. In 2016, a bill failed that called for a study commission of the idea. In 2017, another bill passed to establish that study commission. That study lead to a bill last year to establish an ombudsman. That bill failed, but lead to the multiple similar bills this year, one in the House, HB 729 and one in the Senate SB 313. Both of these bills have been amended, passed out of committee and on the floor, and are now in the Finance committees.
In the near future, I see 3 major themes for Right-to-Know bills: 1) the ombudsman, 2) bureaucratic obstacles to records, and 3) electronic records.
Though it has been a long fight, there is now a strong consensus in New Hampshire that an ombudsman is the best alternative to court. Both of the ombudsman bills this year will sunset in 4 years. So, even if one passes this year we will need a new bill in 4 years to keep it going. This is also a big change, albeit a good change, so I’m sure we will need smaller bills in the meantime to make it run smoothly.
I’ve already mentioned free inspection of records. Charging for inspection is just one way some towns and agencies make it hard to access records. There are other common obstacles: high copy costs, needless delays, interpreting records requests narrowly, and so on. Delays and unexplained or apparently unjustified denials for records are the most common complaint citizens ask Right to Know NH about.
An idea to address one of these obstacles, is in the federal Department of Justice guidance for FOIA requests. The guidance is that they should make a good faith effort to steer a badly worded request toward readily accessible records. That is, if they don’t have exactly what you asked for, but they do have something you might find useful, they should give you that option. Each of these obstacles is an opportunity for future bills.
The last fertile theme I’ll bring up is access to electronic records. More and more records are electronic, many from beginning to end. A decade ago, RSA 91-A was revised to deal with electronic records. However, this revision did not recognize the internet, and technology has continued to advance quickly.
Electronic records have lots of complexities compared to paper: metadata, file formats, copying to media including the internet, cyber security, redaction, publishing on the web, and many more.
Metadata is information embedded inside electronic records. An example of useful metadata is a formula in a spreadsheet. A spreadsheet with active formulas can allow a citizen to easily try out what ifs. A counter example of metadata are tracked changes in a document. These could be considered a record of internal deliberations in an agency, not subject to public disclosure under executive privilege. But, what if that document is distributed to a quorum of a public body with those changes still tracked. At that point, those changes may become subject to disclosure. In general, may a citizen request metadata? How is metadata redacted? How does an agency even know what metadata is in a record?
There are similar complexities related to file formats such as how does a citizen get electronic data from a proprietary formatted database. Different formats provide different levels of usefulness. For example, an electronic spreadsheet is very different than a paper printout of that spreadsheet or even a PDF. Can a citizen request a specific format? What formats might be available for a particular record? What if the citizen doesn’t have the software needed to read a particular format?
The questions go on: What is the actual cost of copying electronic records? What are the costs of copying over the internet? How can electronic records be effectively redacted but remain in a useful format? How can electronic records be made available for inspection? How do we encourage more electronic records to be published on the web?
We are going to have more questions as electronic records become more pervasive and more advanced. We need to identify, understand, and prioritize these issues so we can propose bills to ensure that public access to governmental records gets stronger in New Hampshire.
Sunshine Week features New Hampshire Right-to-Know discussion
MANCHESTER — In recognition of Sunshine Week, a national initiative to promote open government, the Nackey S. Loeb School of Communications and New England First Amendment Coalition will present a discussion concerning the key to open government in New Hampshire — the state Right to Know Law.
The panel discussion will be held at the Loeb School, 749 East Industrial Park Drive, Manchester, on March 11 from 6:30 to 8:00 p.m. It is free of charge and open to all.
- The Honorable N. William Delker, Associate Justice, New Hampshire Superior Court.
- Lisa English, Assistant N.H. Attorney General, Chief of the Civil Division.
- Gilles Bissonette, Legal Director, American Civil Liberties Union, New Hampshire.
- Steven A. Bolton, Corporation Counsel, City of Nashua.
- Mark Hayward, Investigative Reporter, New Hampshire Union Leader.
- David Taylor, Vice President, Right to Know New Hampshire.
The discussion will be moderated by First Amendment attorney Gregory V. Sullivan, a board member of both sponsoring organizations and corporate counsel to the Union Leader Corp.
Sunshine Week is a national celebration of the citizen’s right to know what their government is up to. Its goal is to promote a dialogue about the importance of open government and freedom of information. Participants include news media, civic groups, libraries, nonprofits, schools and others interested in the public’s right to know.
Nackey S. Loeb School of Communications
RTKNH took part in a panel discussion last week to help celebrate Sunshine Week.
A current status of Right-to-Know Bills before the Legislature can be found here.
THIS BLOG POST IS ONE OF SEVERAL GUEST EDITORIALS THAT WILL BE PUBLISHED DURING SUNSHINE WEEK (March 11 – 17), HIGHLIGHTING THE NEED FOR MORE GOVERNMENT TRANSPARENCY.
By Deborah Sumner
“[E]very voter’s vote is entitled to be counted once. It must be correctly counted and reported.” Gray v. Sanders, 372 U.S. 368, 380 (U.S. 1963)
NH Law requires that our votes are counted in public (RSA 659:63) so there are many eyes to catch and correct mistakes. But, with 87.5% of all NH ballots now potentially “counted” by AccuVote computer, we can’t know if election officials are fulfilling their constitutional duties to us UNLESS we can publicly verify the results are true. Known risk factors include changing votes, counting them as fractions and losing them. (Technology for Diebold optical scan is same as touchscreen).
After two failed attempts to repeal the ballot exemption from RSA 91-A (passed in 2003) and two pro se litigant attempts in NH courts to access my town’s ballots to make sure our votes are counted as voters intend them, I am considering going to federal court. Since I dislike the court option so much, why would I even consider it?
If everything was fine with our elections, as the “official” government story claims, I could file a public records request, review a sampling of ballots and confirm it (as citizens in a number of other states can do). As a former reporter, I know there is often a different story that contradicts the first and requires public action to fix. This is one of them.
My Story Begins
Before the November 2010 election, Jaffrey citizens asked our moderator to do a hand count check of one of two federal races, chosen at random after polls closed.
Both were open seats and fit the definition of a high stakes, competitive race most vulnerable to tampering. A 2009 state advisory report advised random computer checks and some moderators had been doing them.
The Jaffrey moderator said yes and confirmed with the Attorney General he could; the Deputy Secretary of State convinced him to change his mind.
NH Const. Part I, art. 8 IMMEDIATELY came to mind. “Of course we should know if the vote count is accurate for our town. Both the NH Constitution and election laws REQUIRE it!” I sputtered.
Louder alarm bells sounded when I went to court and found the Town Clerk had reportedly destroyed the November 2010 ballots, in violation of federal law and before a Cheshire Superior Court judge could decide if I could review them.
At that point, my hair was on fire. Yet the court, state and local officials didn’t see ANY problem. Case dismissed. There was no state or local investigation to confirm when ballots were destroyed or if anyone had advised the clerk to destroy them. I documented probable election fraud. Jaffrey Chronology
Even though law required local officials to ensure accurate vote counts, local officials claimed they couldn’t check computer accuracy because the Secretary of State didn’t want them to.
In 2016, the NH Supreme Court denied my request to make sure the 2.5% of AccuVote-counted ballots invalidated as “over votes” in November 2012 were not the result of fraud (at least three known possibilities). Hiding evidence of fraud and/or significant error in our elections is a “political” decision of the legislature, it decided, to my absolute amazement. The court cited an unenforced law as justification for denying my request, saying “we note that New Hampshire law enables public oversight of the vote counting process… RSA 669:63 requires that vote counting be conducted in public, so that the public may observe the counting process as it occurs.”
My story was diverging further from the “official” government’s version. (Since November 2016 there has been more media attention and the public is more aware that election officials across the country haven’t been telling us the truth or protecting our votes for a long time.) Myth of the Hacker-Proof Voting Machine
Attempts to restore the moderator’s legal duty to conduct public vote counts, repeal the ballot exemption and eliminate MOST over voted ballots failed in the Legislature in 2018. NH courts offer no recourse to review ballots for ANY reason. And yet, we have the constitutional right and responsibility to make sure the foundation of our system of self-government is secure, our votes are counted and reported accurately and results are legitimate.
So, with all the reasons not to go to federal court (time, money I don’t have, aggravation, the possibility of setting a bad legal precedent), I’m considering it. Request of Jaffrey Select Board
Without election transparency and public accountability, there can be no trust in our elections or our government. I feel helpless, yet responsible to all of us, my ancestors and future generations to TRY and move the two different NH election stories closer to each other. I can’t know if a federal court will help.
Deborah Sumner is a member of Right to Know New Hampshire and a resident of Jaffrey. She can be emailed at email@example.com
THIS BLOG POST IS ONE OF SEVERAL GUEST EDITORIALS THAT WILL BE PUBLISHED DURING SUNSHINE WEEK (March 11 – 17), HIGHLIGHTING THE NEED FOR MORE GOVERNMENT TRANSPARENCY.
By Harriet Cady
In 1974 I took a Right to Know suit against the Raymond School Board for going into a non-public about my request. Later I read RSA 91-A 3,II-c, which clearly stated the elected board could only go into Non public if the person being discussed was given the right to go in or decline a non public session, something they never afforded me.
I filed the petition in court and Judge Good made the decision they had violated the law and ordered a rehearing. They still refused my request for an IEP for my gifted auditorily impaired son.
That led to appeal after appeal for a program and my ever lasting distrust of the elected officials who were very appreciative when I raised money and helped get the bond issue voted to build a new elementary school, but absolutely wanted nothing to do with anyone who questioned them over their actions as elected officials. I was later to be told by Dr. Suzanne Horner of Mass Children’s that school officials only like parents who say yes.
This essay is about the right of every citizen to see documents created for their elected officials, appointed boards and committees. They are only the representatives for the citizens as you could not have a crowd of citizens running a town.
The Founders of this country wrote a Constitution to assure citizens that the government belonged to them. The First Amendment would mean nothing if we could not see elected officials actions on our behalf. That’s why the Right to Know law is so important to citizens.
Harriet Cady is a founding member and Treasurer of Right to Know New Hampshire and a resident of Deerfield. She can be emailed at firstname.lastname@example.org
By Tom Tardif
When the Belknap County’s Delegation could not achieve a quorum, it recessed the assembly to another date and time to avoid the noticing requirements of RSA 91-A and RSA 24:9-c and 24:9–d which is a violation of RSA 91-A:2 II.
To date, not one of the 10 New Hampshire County Conventions has exercised its right to form a Charter commission. For one, Belknap County’s Convention has never even adopted Rules of Order, Policy, or a Memorandum of Understanding defining its mission, authorities and activities. Accordingly, in the absence of a County Charter, only New Hampshire Law governs any County.
County government consist of three distinct public bodies:
- The Convention
- The Convention’s Executive Committee
- The Commission
Each is embraced by the Right-to-Know law. In order for any action to take place by either of these representative body’s, they shall assemble as a majority or a quorum of the membership. Also, only “yes” or “no” votes shall be included in the calculation of any majority (RSA 33:7-a).
The chair of the county convention / delegation shall set the time and place for the first meeting of the county convention to be held during the week of the second Wednesday of December of each even-numbered year, a notice of which shall comply with RSA 91-A and RSA 24:9-c and –d.
- The chairperson of the convention or a majority of the members of the convention may, and the chairperson of the convention upon the written request of the county commissioners shall, call a further meeting or meetings of the county convention (RSA 24:9-c).
- Officers and Executive Committee, at its first regular meeting, or at any subsequent meeting when necessary, the county convention shall elect a chairperson, vice-chairperson, clerk, and an executive committee (RSA 24:2).
- The executive committee shall elect its chairperson, vice-chairperson, and clerk. Officers of the county convention may be officers of the executive committee an election that shall be public which shall not be by secret paper ballot (RSA 24:2-a).
Of the three aforecited County governmental bodies, only the Convention is bound by more stringent requirements; In addition to RSA 91-A:2, II, per RSA 24:9- c “… further meeting or meetings” and RSA 24:9-d “…The clerk of the convention, or his or her designee, shall mail to each member of the convention a notice stating the time, place and purpose of further meetings at least 7 days before the day of the meeting and shall cause to be published a like notice at least 7 days before the day of the meeting in a newspaper of general circulation in the county.”
A quorum or majority thereof, or any legislative body, a governing body, commission, committee, or authority of any county, advisory committee thereto capable of conducting business. Conversely, the absence a quorum renders an assembly incapable of conducting business. A quorum protects against unrepresentative action in the name of the public body by an unduly small number of members (RSA 91-A:1-a, III). All rights, authority and powers of the county commissioners shall be exercised only by vote of a majority of the county commissioners (RSA 28:1-b).
There should be no dispute that the chairperson of any government body may schedule a meeting. The applicable laws allows the chairman, with or without a quorum to announce a new meeting date but no law absolves or precludes the requirements for a notice (RSA 91-A:2 or RSA 24:9-d). What is well established in RSA 91-A:2, II and RSA 24: 9-d the absent a quorum negates any action taken, specifically a recess.
[Art.] 20. [Quorum, What Constitutes.] A majority of the members of the House of Representatives shall be a “quorum” for doing business. Also, when the newly elected members of the New Hampshire Legislature take their oath of office they also sign an agreement that they will serve on the county convention. RSA 91-A1 -a, III describes a quorum or majority thereof, or any legislative body, a governing body, commission, committee, or authority of any county, advisory committee thereto capable of conducting business. Conversely, the absence a quorum renders an assembly incapable of conducting business. A quorum protects against unrepresentative action in the name of the public body by an unduly small number of members.
Having cited the above, Belknap County’s Delegation in 2016, ignored all of the above when it could not achieve a quorum, it recesses the assembly to another date and time to avoid the noticing requirements of RSA 91-A and RSA 24:9-c and –d. The Convention schedule a meeting in Laconia when the State Legislature was in session, which can’t have taken place. The Superior Court found nothing wrong with that process so it has been appealed to the Supreme Court (Thomas A. Tardif v. Belknap County Convention Case 2017-0650). In addition the commissioners filed a counterclaim which was denied and now has filed a Mandatory appeal with the Supreme Court for cost and fees.
Tom Tardif is a member of Right to Know New Hampshire and a resident of Laconia. He can be emailed at email@example.com
Please contact your Legislator NOW and ask them to support SB 555.
SB 555 will establish an Ombudsman to resolve Right to Know grievances and reduce the burden and costs for:
- Public agencies & bodies
The 13 member study commission unanimously agreed that New Hampshire needs an Ombudsman.
The Senate Judiciary Committee unanimously agreed that New Hampshire needs an Ombudsman and voted to pass SB 555. The vote was 5-0.
Since there was a Fiscal Note on the Bill requiring an appropriation of $48,000 for the Ombudsman, the Senate Finance Committee yesterday voted the Bill Inexpedient to Legislate. The vote was split 3-3.
While hiring an ombudsman and establishing a new office is an added expense, there will be considerable savings to offset the costs to the taxpayers. By avoiding litigation, municipalities and state agencies will often be spared court costs and attorney fees. For example, in the Superior Court case of Porter v. Town of Sandwich, Porter was awarded over $200,000 in attorney fees and the town had to pay their own legal fees too. Recently, the town of Tuftonboro paid over $20,000 in legal fees and lost their Right-to-Know lawsuit.
Either way, taxpayers are going to pay for resolving Right to Know violations. I think $48,000 for an Ombudsman now will yield more than $48,000 in avoided litigation costs later.
Please contact your Legislator NOW and ask them to support SB 555.
David Saad is the President of Right to Know New Hampshire and a resident of Rumney. He can be emailed at firstname.lastname@example.org